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Of all the parts of a law the most effectual is the vindicatory. For it is but loft labour to say, "do this, or avoid that," unless we also declare, " this shall be the confequence of your noncom"pliance." We must therefore observe, that the main strength and force of a law consists in the penalty annexed to it. Herein is to be found the principal obligation of human laws.

LEGISLATORS and their laws are said to compel and oblige; not that by any natural violence they so constrain a man, as to render it impoffible for him to act otherwise than as they direct, which is the strict sense of obligation: but because, by declaring and exhibiting a penalty against offenders, they bring it to pass that no man can easily choose to tranfgrefs the law; fince, by reason of the impending correction, compliance is in a high degree preferable to disobedience. And, even where rewards are proposed as well as punishments threatened, the obligation of the law seems chiefly to consist in the penalty: for rewards, in their nature, can only perfuade and allure; nothing is compulsory but punishment.

IT is held, it is true, and very justly, by the principal of our ethical writers, that human laws are binding upon mens consciences. But if that were the only, or most forcible obligation, the good only would regard the laws, and the bad would fet them at defiance. And, true as this principle is, it must still be understood with some restriction. It holds, I apprehend, as to rights; and that, when the law has determined the field to belong to Titius, it is matter of confcience no longer to withhold or to invade it. So also in regard to natural duties, and such offences as are mala in fe: here we are bound in confcience, because we are bound by fuperior laws, before those human laws were in being, to perform the one and abstain from the other. But in relation to those laws which enjoin only positive duties, and forbid only fuch things as are not mala in se but mala prohibita merely, annexing

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nexing a penalty to noncompliance, here I apprehend confcience is no farther concerned, than by directing a fubmiffion to the penalty, in case of our breach of those laws: for otherwise the multitude of penal laws in a state would not only be looked upon as an impolitic, but would also be a very wicked thing; if every such law were a snare for the confcience of the subject. But in thefe cafes the alternative is offered to every man; "either ab"stain from this, or submit to such a penalty;" and his conscience will be clear, whichever fide of the alternative he thinks proper to embrace. Thus, by the statutes for preserving the game, a penalty is denounced against every unqualified person that kills a hare. Now this prohibitory law does not make the tranfgreffion a moral offence: the only obligation in confcience is to submit to the penalty if levied.

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I HAVE now gone through the definition laid down of a municipal law; and have shewn that it is "a rule of civil con"duct --- prescribed --- by the supreme power in a state ---com"manding what is right, and prohibiting what is wrong:" in the explication of which I have endeavoured to interweave a few useful principles, concerning the nature of civil government, and. the obligation of human laws. Before I conclude this section, it may not be amiss to add a few observations concerning the interpretation of laws..

WHEN any doubt arose upon the construction of the Roman laws, the usage was to state the cafe to the emperor in writing, and take his opinion upon it. This was certainly a bad method of interpretation. To interrogate the legislature to decide particular disputes, is not only endless, but affords great room for partiality and oppreffion.. The answers of the emperor were called his rescripts, and these had in fucceeding cafes the force of perpetual laws; though they ought to be carefully diftinguished, by every rational civilian, from those general conftitutions, which had only the nature of things for their guide. The emperor Macrinus, as his historian Capitolinus informs us, had once refolved

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to abolish these rescripts, and retain only the general edicts; he could not bear that the hafty and crude answers of such princes as Commodus and Caracalla should be reverenced as laws. But Juftinian thought otherwise, and he has preserved them all. In like manner the canon laws, or decretal epistles of the popes, are all of them rescripts in the strictest sense. Contrary to all true forms of reasoning, they argue from particulars to generals.

THE fairest and most rational method to interpret the will of the legislator, is by exploring his intentions at the time when the law was made, by figns the most natural and probable. And these signs are either the words, the context, the subject matter, the effects and confequence, or the spirit and reason of the law. Let us take a short view of them all.

1. Words are generally to be understood in their usual and most known fignification; not so much regarding the propriety of grammar, as their general and popular use. Thus the law mentioned by Puffendorf, which forbad a layman to lay hands on a priest, was adjudged to extend to him, who had hurt a priest with a weapon. Again; terms of art, or technical terms, must be taken according to the acceptation of the learned in each art, trade, and science. So in the act of settlement, where the crown of England is limited "to the princess Sophia, and the heirs "of her body, being protestants," it becomes necessary to call in the assistance of lawyers, to afcertain the precise idea of the words "heirs of her body;" which in a legal sense comprize only certain of her lineal descendants. Lastly, where words are clearly repugnant in two laws, the later law takes place of the elder : leges pofteriores priores contrarias abrogant is a maxim of universal law, as well as of our own constitutions. And accordingly it was laid down by a law of the twelve tables at Rome, quod populus poftremum juffit, id jus ratum efto.

* Inft. 1.2.6.

L. of N. and N. 5. 12. 3.

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2. IF m 1.5. c. 12. §. 8.

2. IF words happen to be still dubious, we may establish their meaning from the context; with which it may be of fingular use to compare a word, or a fentence, whenever they are ambiguous, equivocal, or intricate. Thus the proeme, or preamble, is often called in to help the construction of an act of parliament. Of the fame nature and use is the comparison of a law with other laws, that are made by the fame legiflator, that have fome affinity with the subject, or that expreffly relate to the fame point. Thus, when the law of England declares murder to be felony without benefit of clergy, we must resort to the fame law of England to learn what the benefit of clergy is: and, when the common law censures simoniacal contracts, it affords great light to the subject to confider what the canon law has adjudged to be fimony.

3. As to the subject matter, words are always to be understood as having a regard thereto; for that is always supposed to be in the eye of the legislator, and all his expressions directed to that end. Thus, when a law of our Edward III. forbids all ecclesiastical persons to purchase provisions at Rome, it might seem to prohibit the buying of grain and other victual; but when we consider that the statute was made to repress the ufurpations of the papal fee, and that the nominations to vacant benefices by the pope were called provifions, we shall see that the restraint is intended to be laid upon such provisions only.

4. As to the effects and consequence, the rule is, where words bear either none, or a very absurd fignification, if literally understood, we must a little deviate from the received sense of them. Therefore the Bolognian law, mentioned by Puffendorf, which enacted "that whoever drew blood in the streets should be punish"ed with the utmost severity," was held after long debate not to extend to the furgeon, who opened the vein of a person that fell down in the street with a fit.

5. Βυτ, Equity thus depending, essentially, upon the particular circumstances of each individual cafe, there can be no established

5. But, lastly, the most universal and effectual way of difcovering the true meaning of a law, when the words are dubious, is by confidering the reason and spirit of it; or the cause which moved the legislator to enact it. For when this reason ceases, the law itself ought likewise to cease with it. An instance of this is given in a case put by Cicero, or whoever was the author of the rhetorical treatise inscribed to Herennius". There was a law, that those who in a storm forsook the ship should forfeit all property therein; and the ship and lading should belong entirely to those who ftaid in it. In a dangerous tempest all the mariners forsook the ship, except only one fick passenger, who by reason of his disease was unable to get out and escape. By chance the ship came safe to port. The fick man kept poffeffion and claimed the benefit of the law. Now here all the learned agree, that the fick man is not within the reason of the law; for the reafon of making it was, to give encouragement to fuch as should venture their lives to save the vessel: but this is a merit, which he could never pretend to, who neither staid in the ship upon that account, nor contributed any thing to it's preservation.

FROM this method of interpreting laws, by the reason of them, arises what we call equity; which is thus defined by Grotius, "the correction of that, wherein the law (by reason of its univer"sality) is deficient." For since in laws all cafes cannot be foreseen or expressed, it is necessary, that when the general decrees of the law come to be applied to particular cafes, there should be somewhere a power vested of excepting those circumstances, which (had they been foreseen) the legiflator himself would have excepted. And these are the cafes, which, as Grotius expresses it, “ lex non exacte definit, fed arbitrio boni viri permittit."

1. 1. c. 11.

• de aequitate.

rules

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